AND  LAWS  OF  ENGLAND. 


BY  A MEMBER  OF  THE 

CIVICS  CLUB  OF  BROWN  UNIVERSITY. 


i 

t 


Published  Midi y the  auspices  of  the  Club. 


PROVIDENCE  : 

SIDNEY  S.  RIDER. 


l886. 


This  pamphlet  makes  no  pretensions  to  originality  or  exhaustive- 
ness. It  was  composed,  along  with  several  other  papers  similar  in 
nature,  solely  for  the  behoof  of  the  private  circle  of  students  whence  it 
emanates,  and  is  printed,  not  as  superior  to  the  others,  hut  as  of  more 
general  interest  at  the  present  time.  It  presents  a glimpse  of  an 
important  topic  on  which,  to  many,  larger  literature  is  inaccessible. 


9^  (oi-^TQ 


cr 


LAND  LAWS  OF  ENGLAND. 


The  laws  of  Primogeniture  and  Entail,  which  are  the 
principal  features  of  the  present  English  land  system,  have 
• sprung,  in  the  opinion  of  the  most  eminent  authorities,  from 
the  old  feudal  system  in  the  later  stages  of  its  develop- 
ment. Among  the  nations  of  antiquity  whose  laws  we 
have,  the  only  race  to  practice  Primogeniture  was  the  Jews, 
all  other  peoples  giving  equal  rights  to  all  the  sons,  but 
granting  the  eldest  one  the  privilege  of  making  the  first 
choice  in  selecting  his  share  of  the  property.  The  Hin- 
doos, the  Germans,  the  Irish  and  the  Anglo-Saxons  gave 
no  special  preeminence  to  the  first-born.  Moreover, 
Primogeniture  did  not  belong  to  the  customs  which  the 
barbarians  practiced  on  their  first  establishment  within  the 
Roman  Empire,  but  among  these  peoples  the  male  chil- 
dren were  co-proprietors  with  their  father,  and  the  eldest  son 
had  an  equal  share  in  the  common  property.  Sir  Henry 
Maine  says  that  “ an  absolutely  equal  division  of  assets 
among  the  male  children  at  death  is  the  practice  most 
usual  with  society  at  the  period  when  family  dependency 
n is  in  the  first  stage  of  disintegration.”  Nor,  though  many 
laws,  once  supposed  to  be  of  native  growth,  have  since 
been  traced  back  to  the  Roman  law,  can  Primogeniture  be 
derived  from  that  great  source,  for  in  this,  “ when  the  suc- 
cession was  ‘ab  intestato/  and  the  group  of  co-heirs  con- 


o 29220 


4 


sisted  of  the  children  of  the  deceased,  they  each  took  an 
equal  share  of  the  property.” 

From  these  proofs  it  is  clear  that  Entail  and  Primogeni- 
ture had  their  beginning  no  farther  back  than  *the  feudal 
system,  and  it  is  safe  to  assert  that  they  originated  in  this 
system,  inasmuch  as  they  were  established  in  those  coun- 
tries, and  only  in  those  countries,  where  the  feudal  system 
was  established,  and  have  been  abandoned  in  the  lands 
where  this  system  has  been  abandoned. 

The  cause  of  the  origin  of  the  custom  has  been  very 
well  stated  by  Adam  Smith  : “While  land  is  considered  as 
the  means  only  of  subsistence  and  enjoyment,  the  natural 
law  of  succession  divides  it,  like  these,  among  all  the  chil- 
dren of  the  family ; but  when  land  was  considered  as  the 
means,  not  of  subsistence  merely,  but  of  power  and  protec- 
tion, it  was  thought  better  that  it  should  descend  undi- 
vided to  one.” 

In  the  conquest  of  new  countries,  the  chiefs  parcelled 
out  the  newly  acquired  lands  among  their  principal  retain- 
ers, expecting  that,  in  return,  they  would  do  military  ser- 
vice for  their  lord.  On  the  decease  of  any  of  these  retain- 
ers it  was  naturally  the  eldest  son  who  was  best  acquainted 
with  the  obligations  due  his  lord,  and  moreover  it  was  neces- 
sary that  there  be  some  one  understood  head  of  the  family 
to  lead  it  in  peace  and  in  war.  This  head  of  the  family 
was  in  the  majority  of  cases  to  be  found  in  the  person  of 
the  eldest  son,  who  had  had  greatest  experience  in  all  these 
matters.  He  performed  his  duties  not  so  much  because  he 
was  looked  upon  as  having  exceptional  rights,  but  because 
of  his  supposed  superior  merit ; and  indeed  in  frequent 
cases  younger  brothers  were  selected  for  the  position, 
showing  that  merit,  not  right,  was  the  true  criterion. 


5 


These  leaders  in  family  matters,  instead  of  enjoying,  as  now 
many  English  landowners  enjoy,  riches,  position,  title,  lux- 
ury and  ease,  were  weighed  down  under  a system  of  bur- 
dens that  made  their  lives  full  of  care  and  toil,  with  but  a 
small  amount  of  peace  or  pleasure. 

The  precise  year  of  the  establishment  of  Primogeniture 
in  England  is  uncertain,  yet  it  is  known  that  by  the  end  of 
4 the  thirteenth  century  it  was  the  almost  universal  custom, 
as  was  also  the  law  of  Entail.  Yet  it  must  be  borne  in 
mind  that  the  law  of  Entail  at  this  period  gives  no  inde- 
, feasible  right  of  inheritance  as  does  the  later  statute. 
This  right  was  instituted  by  the  statute  “ De  Donis,”  made 
in  the  reign  of  Edward  I.,  by  which,  when  a fee  was  granted 
to  a man,  the  succession  of  his  issue  was  secured  against 
alienation,  and  the  property  had  to  be  transmitted  to  his 
heirs  directly.  That  this  statute,  “ De  Donis,”  wrought 
out  the  greatest  evils,  is  clearly  shown  by  its  results  as 
stated  by  Blackstone  in  his  Commentaries : “ Children 
grew  disobedient  when  they  knew  they  could  not  be  set 
aside ; farmers  were  ousted  of  their  leases  made  by  ten- 
ants-in-tail ; creditors  were  defrauded  of  their  debts  ; in- 
numerable latent  entails  were  produced  to  deprive  purcha- 
sers of  the  lands  they  had  fairly  bought ; and  treasons  were 
encouraged,  as  estates-tail  were  not  liable  to  forfeiture  longer 
than  the  tenant’s  life.” 

In  view  of  the  disastrous  effects  of  this  statute,  Parlia- 
ment, in  the  reign  of  Henry  VIII.,  authorized  tenants-in- 
tail  to  bar  their  issue  by  two  methods,  called  respectively, 
“fines”  and  “common  recoveries.”  To  explain  what 
these  laws  were,  I will  quote,  in  substance,  from  Mr.  Pol- 
lock’s Land  Laws,  first,  in  regard  to  the  “common  recov- 
ery ” : 


6 


The  device,  he  says,  in  its  simplest  form,  was  of  this 
nature  : the  tenant-in-tail  (let  us  call  him  Littleton)  being 
in  possession,  some  person  (say  Brian),  acting  in  concert 
with  him,  would  bring  the  real  action,  called  a “ writ  of 
right,”  for  the  recovery  of  the  freehold,  claiming  himself  to 
be  the  real  owner.  Littleton,  instead  of  defending  his 
title  for  himself,  would  “vouch  to  warranty”  a third  per- 
son (say  Catesby),  from  whom  he  professed  to  have  received 
his  title,  and  who  was  supposed  bound  to  warrant  the  tenant 
from  all  comers.  Catesby  was  brought  in  as  a party  and 
acknowledged  the  warranty.  Brian,  the  nominal  plaintiff, 
then  obtained  leave  of  the  court  to  confer  privately  with 
Catesby,  thus  providing  a sort  of  carpenter’s  scene  to  cover 
the  production  of  the  final  effect.  When  Brian  came  back 
from  his  conference  with  Catesby,  it  was  found  that  the  lat- 
ter had  disappeared.  Thereupon  judgment  went  by  default 
against  Catesby,  and  the  lands  were  awarded  to  Brian  as  an 
estate  in  fee  simple.  Brian  transfers  the  estate  to  Little- 
ton, and  the  process  is  brought  to  an  end.  In  regard  to 
the  “fine,”  Mr.  Pollock  says  that  it  was  “a  more  ancient 
proceeding,  differing  from  a recovery  in  that  the  collusive 
action  was  not  pursued  to  judgment,  but  compromised.” 

By  the  use  of  these  processes  the  ownership  and  power 
of  alienation  of  land  were  made  more  just  and  facile  than 
they  have  ever  been  since ; for  by  them  an  owner  could 
obtain  a title  to  his  land  in  fee-simple,  and  then  alienate  as 
he  chose. 

Soon,  however,  family  pride  in  holding  large  estates,  and 
the  desire  for  power,  caused  means  to  be  devised  for  check- 
ing this  freedom  and  keeping  estates  undivided.  The  first 
step  in  this  direction  was  the  substitution,  in  deeds  of  set- 
tlement, of  the  words,  “first,  or  eldest  son,”  for  “heir  of 


7 


his  body,”  the  effect  of  this  change  being,  that  the  father 
took  simply  a life  interest  in  the  estate,  which,  at  his 
decease,  passed  to  the  son.  This  idea  was  gradually  fur- 
ther developed,  so  that,  though  the  tenant-in-tail  could  not 
be  deprived  of  his  right  to  become  eventually  master  of  the 
property,  yet  his  acquisition  of  it  might  be  postponed  one  or 
even  two  generations.  The  next  step  was  the  establishment 
k of  “ trustees  to  preserve  contingent  remainders, ” whose 
function  it  was  to  protect  tenants-in-tail  from  being 
deprived  of  their  lands  by  the  wrong  acts  of  previous  ten- 
* ants. 

These  are  some  of  the  leading  changes  which  have  been 
made  in  the  laws  of  Entail  and  Primogeniture  since  their 
earlier  stages ; and  we  will  now  look  at  some  of  the  condi- 
tions which  the  present  laws  have  caused. 

The  best  idea  of  these  conditions  can  be  obtained  from 
what  are  known  as  the  “ Doomsday  Books,”  a collection  of 
statistics  and  returns,  gathered  and  published  at  the  request 
of  the  Earl  of  Derby,  whose  purpose  it  was  to  show  that 
the  extent  to  which  the  purchase  of  land  and  the  holding 
of  it  in  large  estates  is  carried  on,  had  been  misrepresented. 
The  “Doomsday  Books”  certainly  show  a most  astonish- 
ing and,  it  would  seem,  alarming  state  of  affairs  ; for  the 
extent  to  which  land  is  amassed  in  individual  hands  is  enor- 
mous, notwithstanding  the  fact  that  in  the  reports  of  the 
areas  of  estates,  no  mention  is  made  of  the  acreage  of 
woods,  plantations,  common  lands,  etc.,  which,  if  counted 
in,  would  swell  the  estates  to  vastly  greater  proportions. 
Some  of  these  figures  have  been  taken  by  Mr.  Joseph  Kay, 
in  his  pamphlet  called  “Free  Trade  in  Land,”  and  I will 
quote  them  in  part  from  him  : 

The  total  extent  of  England  and  Wales  is  37,243,859 


8 


acres.  Of  these  acres,  66  men  own  1,917,076;  100  per- 
sons own  3,917,641  ; 710  men  own  more  than  one-quarter; 
874  own  9,267,031  ; and  a class  of  men,  about  4,500  in 
number,  own  17,498,200,  or  more  than  one-half. 

In  Scotland  the  condition  of  affairs  is  far  worse.  Out 
of  a total  area  of  18,946,694  acres,  one  owner  alone  holds 
1,326,000,  to  say  nothing  of  32,000  acres  in  England,  mak- 
ing a grand  total  of  1,358,548.  Seventy  men  own  half  of 
Scotland.  Ireland  is  in  the  same  state. 

Taking  the  twelve  largest  owners  in  each  country,  we 
find  that  in  England  they  hold  in  all,  1,058,883  acres  ; in 
Scotland,  4,339,722;  in  Ireland,  1,297,288.  In  the  United 
Kingdom,  the  twelve  largest  owners  hold  4,440,467  acres. 

Even  Mr.  Froude,  the  eager  champion  of  the  present 
laws,  admits  that  “the  House  of  Lords  does  own  more 
than  a third  of  the  whole  area  of  Great  Britain.  Two- 
thirds  of  it  really  belong  to  great  peers  and  commoners, 
whose  estates  are  continually  devouring  the  small  estates 
adjoining.”  And  this  statement  is  supplemented  by  that 
of  Lord  Derby,  that  “the  glass  of  peasant  proprietors, 
formerly  to  be  found  in  the  rural  districts,  is  tending  to 
disappear.”  The  result  of  the  law  which  grants  this 
power  of  accumulation  is,  that  the  peasant,  with  no  chance 
of  ever  possessing  the  land  on  which  he  is  at  work,  with  no 
possibility  of  ever  having  a home  of  his  own,  has  lost  the 
greatest  incentive  to  labor  and  improvement  on  the  land ; 
he  will  not  waste  his  time,  labor,  or  money  on  that  which 
cannot  be  his,  and  which  he  may  lose  at  any  moment. 
All  around  him  the  rich  and  powerful  are  buying  lands  to 
enlarge  their  estates  at  whatever  price,  in  order  to  gain 
power,  fame  and  title.  And  this  desire  for  large  estates, 
considered  with  the  scarcity  of  land  in  the  market,  creates 


9 


a most  unhealthy  inflation  of  the  price  of  land,  which  can- 
not but  be  harmful  to  the  community. 

But  how  is  it  that  this  land,  when  once  in  the  possession 
of  the  rich,  can  be  tied  up,  and  transferred  in  large  quanti- 
ties by  the  will  of  a single  man  ? Many  believe,  and  that 
falsely,  that  the  law  of  Primogeniture  is  the  cause  of  this 
accumulation.  Primogeniture  means  simply,  that,  in  case  a 

i man  dies  intestate,  the  property  or  land  shall  go  to  his  legal 
heir,  and  this  is  easily  seen  to  be  distinct  from  any  process 
of  forming  large  estates. 

• Some  persons  believe  that  a man,  by  one  will  or  deed, 
can  entail  land  and  keep  it  from  the  market  in  perpetuity ; 
this  is  a mistake.  The  law  allows  an  owner  to  tie  up  his 
land,  so  that  it  cannot  be  sold  during  the  lifetimes  of  any 
specified  persons  in  existence  when  the  will  is  made,  or 
until  the  unborn  child  of  one  of  these  persons  reaches  the 
age  of  twenty-one.  Thus  by  a single  deed,  a lord  can  pre- 
vent his  estate  from  coming  into  the  market  for  several 
generations  after  his  own  death,  however  expedient  or 
imperative  the  sale  might  be.  Mr.  Kay  gives  a striking 
instance  of  the  bad  effects  this  power  may  cause,  occurring 
in  an  estate  in  the  south  of  England,  of  which  he  was  him- 
self a trustee.  A young  titled  lord  had  a valuable  estate 
in  fee-simple,  the  whole  income  belonging  to  himself. 
Upon  his  marriage,  deeds  were  drawn  up,  giving  him  only 
a life  interest  in  the  estate,  which,  at  his  death,  was  to 
descend  to  his  children  in  succession.  The  estate  was 
divided  into  large  farms  and  very  valuable  woods.  Lord 

A was  extravagant  and  reckless  ; he  lived  as  if  his 

income  were  ten  times  what  it  really  was  ; he  gambled  and 
lost  money,  and  finally  fled  from  England.  The  remainder 
of  the  life  interest,  worth  only  the  thinning  of  the  woods, 


IO 


was  sold  to  a Jew,  who  knew  he  would  lose  all  as  soon 

as  Lord  A died.  This  state  of  things  lasted  forty 

years;  the  farmers  had  no  leases,  and  no  security  for 
expenditure ; they  were  unwilling  to  expend  on  the  farm 
buildings.  The  Jew,  in  order  to  make  as  much  money  as 
possible,  demanded  exorbitant  rents,  and  cut  out  of  the 
beautiful  park  far  more  timber  than  any  unembarrassed 
owner  would  have  done,  and  so  the  estate  was  damaged 
more  and  more  every  year ; the  tenantry  were  prevented 
from  dealing  fairly  by  the  land ; there  were  no  one  to  sup- 
port schools  or  the  church,  or  to  look  after  the  large  village 
of  laborers  upon  the  property  ; all  social  progress  and  pros- 
perity were  stopped  ; the  farm  buildings  fell  into  decay  ; 
the  land  was  not  properly  drained  or  cultivated  ; the  plan- 
tations were  injured ; the  mansion  became  dilapidated ; 
and  all  this  was  caused  by  the  deeds  which  the  law  allowed 
the  lord  and  his  heirs  to  execute. 

The  laws  which  grant  this  power  of  maintaining  estates 
unbroken  for  generations,  are  three  in  number : 

(1) .  The  law  which  enables  an  owner,  by  will  or  deed, 
to  prevent  his  estate  being  altered  for  years  after  his  death. 
This  is  the  law  of  Entail. 

(2) .  The  law  by  which,  if  a landowner  dies  intestate,  the 
land  descends  undivided  and  unincumbered  to  his  heirs. 
This  is  Primogeniture. 

(3) .  The  series  of  laws  enabling  landholders  to  lease 
portions  of  their  estates  for  terms  covering  from  ninety- 
nine  to  nine  hundred  and  ninety-nine  years,  placing  upon 
them  restrictions  binding  until  the  lease  expires. 

(1).  The  first  law  enables  an  owner  to  give  his  property 
to  certain  trustees,  with  instructions  to  pay  his  wife  a cer- 


tain  annuity  for  life,  and  to  hand  over  the  rest  of  the  yearly 
income  to  himself.  If  now  he  becomes  hopelessly  in 
debt  through  extravagance  or  bad  habits,  he  cannot  sell  the 
land  and  cancel  his  debts,  but  the  income  must  be  used  to 
pay  his  creditors,  the  land  remaining  in  the  same  hands. 
But  besides  allowing  this  stricture  to  be  made  on  the  land 
during  the  lord’s  own  life,  the  laws  allow  him  to  entail  his 
property  on  his  children’s  children,  and  they  in  turn  can 
do  the  same  to  their  issue,  often  being  enabled  to  restrict 
the  sale  of  land  for  seventy-five  or  one  hundred  years  by  a 
single  will.  Moreover,  the  lord  can  place  upon  his  heirs  all 
sorts  of  restrictions  as  to  the  care  of  the  property,  such  as 
the  payment  of  certain  annuities,  and  the  management  of 
mines,  woods,  etc. 

All  this  one  man  can  do.  But  his  heir  wishes  to  keep 
the  estate  undivided  as  far  as  possible ; so  he  promises  to 
his  son  a large  allowance,  if,  when  he  reaches  his  twenty- 
first  year,  he  will  unite  with  his  father  in  tying  up  the  prop- 
erty as  before.  With  the  dazzling  prospect  of  an  imme- 
diate supply  of  money  if  he  agrees,  and  the  rather  gloomy 
financial  outlook  if  he  refuses,  the  son  naturally  assents. 
Of  these  agreements  between  father  and  son,  Mr.  Cliffe 
Leslie  says  : “ It  is  commonly  supposed  that  the  son  acts 
with  his  eyes  open,  and  with  a special  eye  to  the  contin- 
gencies of  the  future  and  of  family  life.  But  what  are  the 
real  facts  of  the  case  ? Before  the  future  owner  of  the  land 
has  come  into  possession  ; before  he  has  any  experience  of 
his  property,  or  what  is  best  to  do,  or  what  he  can  do  in 
regard  to  it ; before  the  exigencies  of  the  future  are  known 
to  him  ; before  the  character,  number  and  wants  of  his 
children  are  learned,  or  the  claims  of  parental  affection  or 
duty  can  make  themselves  felt,  and  while  still  very  much 


at  the  mercy  of  a predecessor  desirous  of  posthumous 
greatness  and  power,  he  enters  into  an  irrevocable  disposi- 
tion, by  which  he  parts  with  the  rights  of  a proprietor  over 
his  future  property  forever,  and  settles  its  devolution,  bur- 
dened with  charges,  upon  an  unborn  heir.” 

As  the  estate  is  to  be  undivided  for  many  years,  it  is 
necessary  that  there  should  be  many  directions,  in  the  will 
or  deed,  for  the  management  of  the  land,  and  for  proceed- 
ure  in  any  possible  emergencies.  These  directions  may  be 
in  regard  to  cutting  of  woods,  working  of  mines,  erection 
of  new  buildings,  repair  of  old  ones,  expenditures  for  char- 
ity, education,  etc.  And  these  “powers,”  as  they  are 
called,  are  often  so  numerous  and  so  complex  in  their  rela- 
tions to  each  other,  that  the  ablest  lawyers  sometimes  can- 
not tell  the  exact  legal  condition  of  the  estate.  If  legal 
minds  cannot  unravel  these  intricate  knots,  how  can  a lay 
mind  grasp  the  situation  ? 

(2) .  The  second  law,  that  of  Primogeniture,  is  that 
which,  if  the  landowner  die  intestate,  gives  the  entire  prop- 
erty, without  charges  upon  it,  and  undivided,  to  the  land- 
lord’s heir.  This  law  merely  aggravates  the  tendency  to 
the  formation  and  continuation  of  large  estates.  Instead 
of  being  divided  proportionally  among  all  the  relatives,  as 
justice  would  seem  to  demand,  the  property  must  descend 
to  one  and  only  one  heir,  whether  he  be  able  to  carry  on 
the  estate  or  not,  and  without  the  least  regard  for  the  needs 
and  possible  suffering  of  the  others. 

(3) .  By  the  third  of  these  laws  the  landowner,  without 
having  the  power  to  sell  his  land,  can  lease  portions  of  it 
for  terms  of  years  from  ninety-nine  to  nine  hundred  and 
ninety-nine,  and  subject  to  all  sorts  of  conditions.  Before 
the  enactment  of  this  law,  an  owner,  after  entailing  his 


3 


property  upon  his  issue  for  generations,  had  only  a life 
interest,  and  since  the  day  of  his  death  was  uncertain,  the 
time  at  which  a lease  expired  was  equally  uncertain,  and 
no  tenants  would  procure  leases  on  such  terms.  In  order 
to  secure  to  landowners  the  power  of  letting  their  farms 
for  a longer  period  of  years,  the  Court  of  Chancery  was 
authorized  by  Parliament  to  grant  permits  for  leases  extend- 
ing over  ninety-nine  or  nine  hundred  and  ninety-nine  years. 
Not  only  does  this  law  admit  of  the  further  tying  up  of 
estates,  but  the  existence  of  leases,  dating  back  one  hun- 
dred or  two  hundred  years,  also  greatly  complicates  the 
investigation  and  conveyancing  of  titles. 

These  are  some  of  the  leading  principles  which  affect 
land  and  its  transmission.  Now  let  us  look  at  some  of  the 
evil  results  of  these  laws,  results  which,  of  course,  are  not 
invariable,  but  which  often  come  to  pass. 

I.  In  the  first  place,  they  prevent  large  estates  from 
coming  into  the  market,  which  would  often  do  so  if  left 

unrestricted.  In  the  case  of  Lord  A , which  Mr.  Kay 

mentions,  his  estate  would  have  been  for  sale  forty  years 
before  it  was,  had  there  been  no  deed  made  at  his  mar- 
riage. And  there  are  numbers  of  such  cases  in  which  the 
sale  of  the  property,  if  possible,  would  be  a vast  advantage 
to  all  parties  concerned.  This  plan  of  selling  bankrupt 
estates  has  been  tried  in  Ireland,  and  in  two  cases,  cited  by 
Mr.  Kay,  the  tenants  all  bought  their  holdings,  very  many 
being  able  to  pay  a large  per  cent,  down  in  cash.  The 
London  Times  said  : “ In  every  case  great  benefit  had 
resulted  from  the  purchase.  It  had  been  a 4 spur  to  indus- 
try and  thrift,’  and  the  increased  industry  and  activity 
required  to  pay  off  the  loan  will  establish  a habit  for  the 
future.” 


14 


II.  A second  evil  is  that  if  one  of  these  deeds  of  trans- 
fer to  the  son  has  once  been  made,  he  knows  that  no  mat- 
ter what  his  course  of  action  may  be,  it  is  impossible  for 
his  father  to  disinherit  him  or  otherwise  discipline  him, 
however  much  he  may  desire  to  do  so.  This  can  hardly 
conduce  to  a noble  and  useful  life,  or  to  proper  respect  for 
parents.  Lord  Bacon  says  : “ So,  passing  over  considera- 
tions of  humanity,  let  us  now  consider  the  discipline  of 
families.  And  touching  this  I will  speak  modestly  and 
under  correction.  Though  I reverence  the  laws  of  my 
country,  yet  I observe  one  defect  in  them,  and  that  is, 
there  is  no  footstep  of  the  reverend  f potestas  patria  ’ which 
was  so  commended  in  ancient  times.  This  only  remains  : 
if  the  father  has  any  patrimony  and  the  son  be  disobedient, 
he  may  disinherit  him ; if  he  will  not  deserve  his  blessing, 
he  shall  not  have  his  living.  But  this  device  of  perpetui- 
ties has  taken  the  power  from  the  father  likewise,  and  has 
tied  and  made  subject  the  parents  to  the  cradle,  and  so 
notwithstanding  he  has  the  curse  of  his  father,  yet  he  shall 
have  the  land  of  his  grandfather.” 

III.  Berkeley  asks,  “What  right  hath  the  eldest  son  to 
the  worst  education?”  Careless  fathers  are  encouraged  in 
their  carelessness  by  the  knowledge  that,  whatever  the 
son’s  training,  however  he  may  conduct  himself,  and  how- 
ever bad  a reputation  he  may  bring  upon  himself,  he  can 
never  be  deprived  of  his  estates,  or  social  position,  nor  can 
the  future  of  the  family  be  affected  by  his  acts.  The  pres- 
ent laws  have  been  described  as  tending  “to  establish  in 
the  centre  of  each  family  a magnificently  fed  and  colored 
drone,  the  incarnation  of  wealth  and  social  dignity,  the  vis- 
ible end  of  human  endeavor,  a sort  of  great  Final  Cause, 
immanent  in  every  family.”  Thus  are  kept  at  the  head  in 


i5 


public  affairs  men  who  have  looked  upon  labor  as  a dis- 
grace, and  have  grown  up  in  luxury  and  ignorance. 

IV.  In  the  great  majority  of  cases,  when  the  owner 
comes  into  possession  of  his  property,  through  the  death  of 
his  father  or  the  previous  tenant  for  life,  he  is  already  mar- 
ried and  has  a family  of  children.  If,  after  paying  the  cur- 
rent expenses  for  the  year,  he  has  anything  left  from  his 

s income,  he  is  in  a dilemma  as  to  its  disposition.  He  natu- 
rally desires  to  leave  something  to  his  younger  children  as 
well  as  to  their  older  brother.  But  improvements  on  the 
1 estate  are  needed,  which,  if  carried  out,  must  be  paid  for 
from  his  income.  If  the  improvements  are  made,  the 
children  fail  of  their  money ; and  on  the  other  hand,  if  the 
children’s  interests  prevail,  the  land  must  go  unimproved, 
the  latter  being  more  often  the  case ; so  that  estates,  pass- 
ing from  hand  to  hand,  are  frequently  in  a little  poorer  con- 
dition at  each  transfer  than  at  the  preceding  one. 

V.  The  law  of  Entail,  and  of  Primogeniture  as  well,  by 
conferring  upon  an  owner  the  power  of  directing  the  man- 
agement of  the  estate  for  so  many  years,  makes  the  deeds 
of  transfer,  when  such  are  made,  very  long  and  expensive. 
Since  no  change  can  be  made  in  the  deed  after  the  maker’s 
death,  he  must  insert  in  it  an  almost  innumerable  number 
of  directions  and  charges  as  to  the  care  and  disposal  of  all 
the  different  parts  of  the  property,  such  as  the  working  of 
mines,  cutting  of  trees,  sale  of  game,  support  of  relatives, 
etc.  These  directions,  when  made  in  successive  wills  in 

ft 

regard  to  the ' same  piece  of  property,  often  so  cross  and 
recross  each  other  and  become  involved  in  such  tangles, 
^ that  the  ablest  legal  minds  in  England  cannot  unravel  them 
and  come  to  an  agreement  on  their  meaning.  If  the  solic- 
itors are  unable  to  come  to  a decision,  there  is  nothing  left 


i6 


but  to  resort  to  the  Chancery  Courts.  Often  the  process 
is  so  long  that  the  estates  in  question  are  entirely  con- 
sumed by  solicitors’  fees,  and  the  only  question  is,  to  which 
set  of  lawyers  the  estate  belongs. 

VI.  Then,  in  buying  a piece  of  land  the  purchaser  must 
know  what  his  title  is  to  be,  and  his  solicitor,  to  answer 
this  question,  endeavors  to  find  out  whether  all  previous 
owners  have  given  up  all  claim  to  the  land,  what  disposi- 
tion they  made  of  it,  what  restrictions  were  laid  upon  it, 
and  how  long  they  are  to  have  effect,  what  leases  and  mort- 
gages have  been  made,  and  who  hold  them.  But  all  this 
involves  time,  and  time  in  England,  as  elsewhere,  means 
money,  the  title  costing  not  in  proportion  to  the  value  of 
the  estate,  but  in  proportion  to  the  time  spent  by  the  solic- 
itor, which  may  be,  and  frequently  is,  greater  for  a small 
estate  than  for  a large  one.  Mr.  Kay  mentions  a case  in 
1877,  where  a poor  man  bought  three  acres  of  glebe  land 
and  ^15  a year  of  rent  charge,  for  which  he  had  to  pay 
,£117,  or  $685,  for  the  mere  legal  expenses  attending  the 
examination  of  the  title  and  the  deed  of  conveyance.  Such 
cases  are  of  course  exceptional,  yet  very  often  the  expense 
is  so  great  as  to  prevent  a reasonable  man  from  investing 
in  land. 

VII.  But  when  finally  the  deed  is  completed,  and  the 
purchaser  is  congratulating  himself  on  his  new  land  and  the 
fine  bargain  he  has  made,  he  is  not  absolutely  certain  that 
he  cannot  be  ousted  from  his  position  by  some  one  who 
had  a prior  claim  on  the  estate,  which  his  attorney  over- 
looked, or  which  was  concealed  from  him.  A case  of  this 
kind  occurred  in  the  south  of  England,  where  a man,  after 
a careful  examination  of  the  title,  purchased  a small  estate, 
the  former  owner  of  which  soon  fled  the  country  in  a state 


7 


of  hopeless  bankruptcy.  Shortly  afterwards  the  new 
owner  found  that  the  estate  had  been  mortgaged  secretly 
in  ,£1,200  to  a third  party,  who  now  claimed  his  money; 
and  the  money  had  to  be  paid.  If  England  would  only 
adopt  some  such  system  of  registration  of  deeds  as  is  in 
use  in  this  country  and  among  many  European  nations,  all 
uncertainty  as  to  the  security  of  titles  would  be  reduced  to 
s a minimum  ; and  that  the  expense  of  registering  a deed 
would  be  a mere  nothing  as  compared  to  the  present  cost, 
is  shown  by  the  fact  that  in  England’s  own  colony  of  Aus- 
I tralia,  the  expense  has  been  cut  down  ninety  per  cent,  by 
this  institution. 

VIII.  But  the  cost  of  a title  is  not  the  only  considera- 
tion in  small  pieces  of  land  such  as  the  poor  and  the  mid- 
dle classes  would  be  likely  to  purchase.  It  is  almost  impos- 
sible to  get  land.  The  large  estates  swallow  it  up  regard- 
less of  expense  or  need,  and  the  poor  man  must  either  rent 
or  emigrate.  And  this  constant  absorption  of  small  estates 
by  the  greater  ones  causes  immense  harm  ; for,  by  taking 
from  a man  all  opportunity  or  power  of  ever  being  able  to 
possess  in  his  own  right  a strip  of  land  which  he  may  cul- 
tivate and  on  which  he  may  build  a cottage,  they  remove 
one  of  the  greatest  incentives  to  activity,  industry,  econ- 
omy and  moral  life. 

In  addition  to  these  manifestly  harmful  results  which 
have  been  mentioned,  there  are  several  rights  and  powers 
which  landowners,  and  owners  of  no  other  kind,  have  come 
A to  possess,  and  which  they  do  not  fail  to  exercise. 

(i).  The  first  of  these  powers  is  one  derived  from 
ancient  feudal  laws,  and  is  called  the  “ Law  of  Distress,” 
by  which,  if  a tenant  fails  to  pay  his  rent  for  any  reason 
whatever,  whether  sickness,  laziness,  famine  or  distress  of 


i8 


any  kind,  the  landlord,  or  his  agent,  has  full  power  to  step 
in,  without  the  long  process  of  appeal  to  the  courts,  and 
seize  a sufficient  quantity  of  the  tenant’s  household  goods, 
cattle,  or  agricultural  implements,  to  satisfy  the  debt.  To 
an  owner  of  no  other  kind  is  this  right  given  ; all  other 
creditors  must  take  an  equal  chance  in  the  courts. 

(2) .  Another  privilege,  also  handed  down  from  feudal 
times,  is  that  known  as  the  “ Law  of  Fixtures.”  This  law 
provides  that,  in  case  of  a tenant,  whether  on  a short  or 
long  lease,  whatever  improvements  that  tenant  may  make 
upon  his  land,  for  example  fences,  walls,  drains,  new  build-  v 
ings,  etc.,  from  the  moment  they  are  placed  upon  the  land, 
become  fixtures,  and  belong  no  longer  to  the  tenant  who  . 
made  them,  bur  to  the  landlord ; and  this  is  true  whether 
the  improvement  be  fixed  or  of  such  a kind  that  it  can  be 
removed  without  injury  to  the  estate.  And  one  of  the 
worst  features  of  the  law  is  that,  as  a general  rule,  as  can 

be  proved  by  the  many  cases  tried  in  court  on  this  subject, 
the  tenants  enter  into  leases  and  agreements  concerning 
the  land,  without  the  slightest  conception  of  what  the  law 
means,  or  in  fact  that  it  exists. 

(3) .  Then,  in  the  matter  of  game  laws,  the  lord  has  a 
power  over  those  found  trespassing  on  his  premises,  which 
would  be  tolerated  in  no  other  country.  A man  caught  in 
the  act  of  poaching  is  tried  before  a magistrate,  himself  a 
landowner,  who  having  the  same  interests  at  stake  as  the 
man  on  whose  preserves  the  poaching  was  done,  is  not 
likely  to  let  the  offender  go  unpunished,  and  who  often 
imposes  a fine  which  utterly  ruins  him.  In  no  other  court 
would  a judge  be  allowed  to  sit  on  the  bench  if  he  were  ^ 
anything  but  a disinterested  party. 

One  very  harmful  result  of  England’s  land  policy  is  that 


19 


the  wealthy  landowners,  who  are  also  the  leaders  in  politi- 
cal matters,  gain  the  support  of  their  tenants  very  often 
through  patronage  and  the  tenants’  dread  of  eviction.  To 
secure  the  votes  of  the  people  the  lords  grant  leases  for 
only  short  periods,  which  work  vast  evils,  for  the  man 
whose  lease  expires  in  a few  years  will  not  lay  out  money 
in  improvements  which  may  be  taken  from  him  at  any 
time ; a most  terrible  lack  of  improvements  has  resulted 
‘ from  this  practice. 

Great  difficulty  will  be  experienced  in  trying  to  reform 
. the  land-laws,  on  account  of  the  enormous  wealth  and  in- 
fluence of  the  landowners  in  Parliament  and  elsewhere,  and 
also  from  that  proverbial  indisposition  on  the  part  of  an 
Englishman  to  attempt  anything  for  which  he  has  not  the 
precedent  established  way  back  in  the  time  of  the  Con- 
queror. 

The  first  place  where  reform  should  be  attempted  is  in 
the  law  of  Primogeniture,  which  should  be  repealed,  a 
measure  which  even  the  champions  of  the  present  system 
are  beginning  to  endorse,  since  it  is  among  the  poorer 
classes  only  that  intestacy  prevails  ; and  thus  the  abolition 
of  this  law  would  not  affect  them  at  all.  And  even  if  a 
large  property  should  devolve  upon  several  children,  yet  a 
fraternal  agreement  could  easily  be  made  by  which  the 
estate  might  be  kept  in  the  family  undivided. 

But  Primogeniture  is  not  the  only  place  where  improve- 
ment can  be  made.  The  law  of  Entail  has  far  greater 
A . influence  for  ill.  It  has  been  proposed  to  cut  off  that  part 
of  this  statute  which  permits  the  entailing  of  estates  upon 
unborn  children,  and  limiting  it.  to  only  specified  persons 
* in  existence  when  the  will  or  deed  was  made.  This  meas- 
ure would  afford  only  a slight  relief  ; for  when  property 


20 


can  be  tied  up  for  one  hundred  years,  a reduction  of  twenty 
years  does  not  touch  the  vital  defect  in  the  system,  but 
would  only  set  lawyers  at  work  to  devise  some  \vay  of  get- 
ting round  the  statute. 

For  these  and  other  reasons  it  seems  better  to  sweep 
away  entirely  the  law  of  Entail.  This  would  not  put  an 
end  to  the  power  of  settling  property  upon  one’s  heirs  at 
pleasure,  but  it  would  destroy  the  power,  given  to  one  man 
to  direct  the  administration  of  an  estate  for  a century  after 
his  death.  Following  the  abolition  of  this  law  would  be 
increased  parental-  control,  and  a general  betterment  of  • v 
those  evils  already  mentioned  as  resulting  from  Entail. 
Moreover,  estates  now  heavily  encumbered  by  debts  would 
come  into  the  market,  greatly  to  the  advantage  of  the  lord 
himself  and  of  his  creditors  as  well.  Mr.  Arthur  Arnold 
gives  a very  good  picture  of  the  condition  of  a bankrupt 
landlord:  “The  nominal  owners  of  several  of  the  finest 
properties  in  England  are  now  adjudicated  bankrupts ; 
their  lands  are  racked  and  impoverished,  but  those  broad 
acres  cannot  be  made  free  without  the  cooperation  of  the 
tenant-for-life  with  the  next  tenant-in-tail,  who  in  some  cases 
is  a minor,  and  in  others  is  unborn,  and  may  never  come 
into  existence.  But  for  every  one  of  the  landed  gentry 
who  is  bankrupt,  there  are  scores  who  are  hopelessly 

embarrassed The  cottages  upon  many  estates  are 

fever-nests  and  are  few  and  far  between  ; the  homesteads 
are  insufficient,  inconvenient,  and  in  many  cases  in  ruins  ; 
the  land  is  undrained,  and  there  is  no  one  with  the  interest  ^ 
of  a proprietor  to  look  to  the  estate.  The  ostensible 
owner,  the  lord  or  the  squi-re  of  the  district,  who  is  harassed  ^ 
for  subscriptions,  and  supposed  to  contemplate  with  the 
benign  interest  of  a seignioral  lord  the  welfare  of  all 


21 


around,  who  is  the  great  man  in  the  church  and  in  the  vi( 
lage,  is  in  the  dull  reality  of  his  own  home  merely  a poor 
annuitant,  with  his  eyes  fixed,  not  upon  the  many  fields 
and  farms  which  in  the  rate-book  bear  his  name,  but  upon 
the  slender  remnant  of  income  which  is  all  that  charges  or 
settlements  have  left  him  for  the  daily  and  hourly  labor  of 
providing  for  a family,  for  whom  ten  times  his  means  would 
, seem  insufficient.  He  and  his  eldest  son  have  but  one 
pleasure  in  the  world,  and  as  it  appears  to  cost  nothing, 
they  think  themselves  meritorious  in  that  they  are  content 
^ with  the  sporting  which  the  estate  and  the  neighborhood 
afford.  The  younger  children  languish  at  home,  well 
knowing  that  upon  their  father’s  death  they  must  find  a 
new  shelter,  with  very  small  fortunes.” 

The  laws  of  Primogeniture  and  Entail  are  the  chief 
cause  of  the  troubles  in  the  administration  of  land  in  Eng- 
land to-day;  but  besides  the  abolition  of  these,  there  are 
other  reforms  and  improvements  which  should  be  made  in 
order  to  make  the  sale  and  transfer  of  land  more  certain 
and  simple,  with  less  cost.  Two  of  these  changes  are  to  be 
found  in  the  questions  of  registration  and  conveyancing. 
If  there  had  not  been  for  so  long  a period  the  complicated 
series  of  wills  and  deeds  entailing  property  upon  future 
generations  with  an  almost  endless  variety  and  number  of 
directions,  restrictions  and  charges,  much  of  the  tedious- 
ness and  outrageous  cost  of  conveyancing  would  have  been 
uncalled  for,  and  the  title  of  an  English  estate  would  not 
^ have  needed  to  be  “ enshrined  in  a mausoleum  of  parch- 
ment.” This  better  conveyancing  would  be  greatly  aided 
by  better  means  of  registration  of  title  than  at  present  pre- 
vail ; these  means  now  consist  in  the  records  of  the  Court 
of  Chancery,  which  are  often  very  defective.  Registration 


22 


can  be  made  just  as  simple  and  easy  in  England  as  any- 
where else,  yet  it  can  have  no  beneficial  effect  if  not  made 
compulsory,  and  also  convenient  and  cheap. 

Several  movements  in  the  direction  of  improvement  have 
already  been  begun,  and  more  are  constantly  being  pro- 
posed. In  1833  the  clumsy  method  of  “ fines”  and 
“ common  recoveries  ” was  abolished  and  a tenant-in-tail 
now,  by  means  of  a deed  enrolled  in  chancery,  can  make 
whomsoever  he  pleases  possessor  of  his  estates,  in  fee-sim- 
ple, if  he  has  the  freehold  ; but  if  he  has  not  this,  he  must 
get  the  consent  of  the  tenant-for-life,  who  is  then  called 
“protector  of  the  settlement.”  This  measure  has  caused 
great  relief. 

To  alleviate  in  some  degree  the  difficulties,  dangers  and 
expenses  caused  by  poor  registration,  many  efforts  have 
been  made.  Many  times  the  subject  has  been  discussed, 
yet  the  root  of  the  matter  has  been  left  untouched.  Reg- 
istries of  deeds  have  been  established,  as  for  example,  the 
one  in  1862,  in  which  state  guarantee  and  simplicity  were 
offered  in  future  dealings  to  landlords  who  could  prove 
their  titles  satisfactorily.  Local  registries  have  also  been 
established,  but  with  little  success,  the  chief  obstruction  to 
their  success  being  that  they  are  not  made  compulsory  by 
law.  The  certainty  of  a title  under  the  present  system  is 
well  set  forth  in  an  answer  sent  to  the  Real  Property  Com- 
missioners in  reply  to  some  inquiries  from  them:  “It  is 
possible  to  attain  to  such  a degree  of  certainty  as  com- 
monly satisfies  a prudent  man  in  the  ordinary  business  of 
life,  but  with  considerable  delay,  difficulty  and  expense ; 
the  great  evil  is  not  that  titles  are  uncertain  or  unsafe,  but 
that  the  investigation  of  them  is  difficult,  tedious  and 
costly.”  A title  is  now  held  to  be  good  when  there  have 


23 


been  twelve  years  undisturbed  possession,  except  when  the 
claimants  were  disabled  by  infancy  or  some  like  reason  from 
presenting  their  cause,  in  which  case  six  more  years  are 
allowed. 

Another  point  where  much  remains  to  be  done  is  in  the 
matter  of  the  disadvantages  of  strict  settlements,  of  which 
Lord  St.  Leonards  wrote : “ The  present  plan  of  a strict 
^ settlement  does  not  place  land  extra  commercium , but 
within  reasonable  limits  enables  the  owner  to  transmit  it  to 

all  his  posterity No  man  in  this  country  can 

p justly  complain  that  there  is  not  sufficient  land  in  the  mar- 
ket on  sale.”  The  great  objection  to  these  strict  settle- 
ments is  that  no  room  is  left  to  a tenant-for-life  for  improve- 
ments on  his  estate.  The  charges  already  placed  upon 
him  by  his  ancestors,  have  so  narrowed  his  income  that  he 
has  all  he  can  do  to  support  himself.  In  1882  the  Settled 
Land  Act  of  Lord  Cairns  was  passed,  which  gives  the  ten- 
ant-for-life certain  powers  of  selling  and  leasing,  subject  to 
certain  restrictions  intended  for  safeguards  to  prevent 
abuse.  The  consent  of  the  Court,  however,  is  necessary  to 
the  sale  of  a mansion-house  or  an  heir-loom.  The  money 
obtained  from  the  sale  of  land  may  be  devoted  to  improve- 
ments, the  expenditure  on  which  is  under  the  eye  of  the 
Land  Commissioners  or  the  Court.  By  this  act  the  life- 
tenant  gets  no  benefit  to  himself,  but  only  places  his  estate 
in  a far  better  condition  for  his  son  to  enter  upon  ; he  may 
leave  money  entirely  instead  of  land,  if  he  pleases;  in  so 
* far  can  he  alter  the  form  which  his  son’s  rights  take,  but 
he  cannot  alter  the  rights  themselves. 

We  have  mentioned  some  of  the  laws  which  govern  Eng- 
land’s land  to-day,  also  some  of  the  evils  which  these  laws 
have  caused,  together  with  proposed  remedies  for  them. 


24 


With  all  these  harmful  customs  and  laws  swept  away,  and 
with  better  facilities  of  transfer,  “ it  is  not  too  much  to 
expect,”  to  quote  Mr.  Brodrick,  “ that  some  links,  now  miss- 
ing, between  rich  and  poor,  gentle  and  simple,  might  be 
supplied  in  country  districts  ; that  ‘ plain  living  and  high 
thinking’  might  again  find  a home  in  some  of  our  ancient 
manor-houses,  once  the  abode  of  landowners,  but  now  ten- 
anted by  mere  occupiers ; that,  with  less  of  dependence  ^ 
and  subordination  to  a dominant  will,  there  would  be  more 
of  true  neighborly  feeling,  and  even  of  clanship  ; and  that 
posterity,  reaping  the  beneficent  fruits  of  greater  social 
equality,  would  marvel,  and  not  without  cause,  how  the 
main  obstacle  to  greater  social  equality— the  Law  and 
Custom  of  Primogeniture  — escaped  revision  for  more 
than  two  centuries  after  the  final  abolition  of  the  feudal 
tenures.” 


UNIVERSITY  OF  ILLINOIS-URBANA 


3 0112  061728710 


